Clarification: When Parents Decline English as a Second Language (ESL) Services for English Learners

TO: Superintendents of Schools
FROM: Angela Faherty, Ph.D., Commissioner of Education
DATE: September 13, 2010
RE: Clarification: When Parents Decline English as a Second Language (ESL) Services for English Learners

The purpose of this letter is to clarify the requirements for serving an English Learner, even if parents decline ESL services.

Federal law requires that an English Learner receive ESL services.
Federal law requires that states define English language proficiency and provide ESL services to all who do not meet that definition. Maine defines English language proficiency as attaining a Level 6 Composite score on the State’s English language proficiency assessment ACCESS for ELLs®. If a parent refuses ESL services, meaningful education must still be provided. When a parent refuses ESL services, the parent’s refusal of ESL services must be documented, but it does not release the school or School Administrative Unit (SAU) from its responsibility for providing meaningful education to the English Learner. If parental refusal of ESL services denies an English Learner access to a meaningful education, this violates the English Learner’s rights. A parent cannot refuse “education” and if an English Learner cannot access education without ESL services, then the school/SAU must support the academic learning of the English Learner. If an ESL program is necessary in order to ensure academic progress for the English Learner, then ESL services must be provided.
The Civil Rights Act of 1964 remains the foundation of the legal rights of an English Learner.

“No person in the United States shall, on the ground of race, color or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving federal financial assistance.” (42 U.S.C. 2000d)

Rights of English learners

This has been interpreted by courts as requiring a qualified ESL teacher to be provided to English Learners to ensure that they are not excluded from participation in meaningful education.

In addition, an Office for Civil Rights Memorandum of 1991 requires a qualified ESL endorsed teacher for English Learners, in order that they are not relegated to second-class status by allowing a teacher without formal qualifications to teach them while requiring teachers of non-English Learners to meet formal qualifications (See 34 Code of Federal Regulations C.F.R. Section 100.3 (b)(ii)).

Schools/SAUs do not need parental permission to test a student.
If a parent refuses to allow a student to participate in a State assessment, refer to the superintendent’s/SAU’s/school’s policy on procedures to follow when a parent refuses to allow a child to participate in a State assessment. The ACCESS for ELLs® is a federally and state-required annual assessment and participation is a component of No Child Left Behind (NCLB) accountability. Failure of English Learners to participate in the annual administration of the ACCESS for ELLs® may affect NCLB Title IA funding. Even if a parent has refused ESL services, if that student has been identified as an English Learner, then that student must be administered the ACCESS for ELLs® annually until that student attains the State’s definition of English language proficient, which is defined as a Level 6 Composite score on the ACCESS for ELLs®.

If you have any questions or would like further information, please contact Nancy Mullins, Director of ESL/Bilingual Programs, at 207-624-6788 or nancy.mullins@maine.gov .

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